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New Trends in Religious Liberty and the European Court of Human Rights

  • Ian Leigh (a1)

This article analyses recent trends in the jurisprudence of the European Court of Human Rights concerned with the right to freedom of thought, belief and religion (Article 9, European Convention on Human Rights) and the right of parents to respect by the state for their religious and philosophical views in the education of their children (Article 2, Protocol 1).1 These developments include notable decisions concerned with protection from religious persecution in Georgia, with religious education in Norway and Turkey and with the display of crucifixes in state schools in Italy. It is apparent that the European Convention religious liberty jurisprudence increasingly stresses the role of the state as a neutral protector of religious freedom. For individuals religious freedom is now also recognised to include not only the right to manifest their religious belief but also freedom from having to declare their religious affiliation. As the religious liberty jurisprudence comes of age, other significant developments, for example in relation to conscientious objection to military service, can be anticipated.

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1 It serves as a companion piece for a previous overview of recent domestic jurisprudence in the United Kingdom concerning freedom of religion: Leigh, I, ‘Hatred, Sexual Orientation, Free Speech and Religious Liberty’, (2008) 10 Ecc LJ 337344.

2 Otto-Preminger Institute v Austria (1994) 19 EHRR 34.

3 Ibid, para 47.

4 See Serif v Greece (2001) 31 EHRR, para 53.

5 97 members of the Gldani congregation of Jehovah's Witnesses and 4 others v Georgia, Appl No. 71156/01 (3 May 2007).

6 Ibid, para 134.

7 Ibid, para 141.

8 Ibid, para 105.

9 Appl No 184/02 (11 January 2007).

10 Ibid, para 85.

11 See for example Murphy v Ireland, Appl No 44179/98 (10 July 2003), the regrettable decision in which the Court permitted Ireland to ban all religious advertising on radio under this justification.

12 Article L 141-5-1 of the Education Code, inserted by Loi no 2004-228 (15 March 2004).

13 Combined admissibility decisions in applications brought by Muslim girl pupils: Aktas v France, Appl no 43563/08; Bayrak v France, Appl no 14308/08; Gamaleddyn v France, Appl no 18527/08; Ghazal v France, Appl no 29134/08 (17 July 2009), involving the wearing of the headscarf. J Singh v France, Appl no 25463/08 and R Singh v France, Appl no 27561/08 (17 July 2009), concerning the wearing of the a ‘keski’, an under-turban worn by Sikhs. In all these cases, the ban on the wearing by pupils of religious symbols constituted a restriction of their freedom to manifest their religion but one that was justified and proportionate to the aim of protecting the rights and freedoms of others and public order. The complaints under Article 9 were therefore manifestly ill-founded. Nor was there a violation of Article 2 of Protocol No 1 (right to education) in the cases of Aktas, Bayrak, Ghazal, Jasvir Singh and Ranjit Singh.

14 Dogru v France Appl No 27058/05 (4 December 2008); Kervani v France, Appl No 31645/04 (4 December 2008).

15 Ibid. The ECtHR found it was unnecessary separately to examine the complaint based on Article 2 of Protocol No 1.

16 Ibid, para 64, citing especially Leyla Sahin v Turkey, Appl No 44774/98 (10 November 2005, Grand Chamber).

17 Ibid, para 72. See also para 71: ‘it was for the national authorities, in the exercise of their margin of appreciation, to take great care to ensure that, in keeping with the principle of respect for pluralism and the freedom of others, the manifestation by pupils of their religious beliefs on school premises did not take on the nature of an ostentatious act that would constitute a source of pressure and exclusion … In the Court's view, that concern does indeed appear to have been answered by the French secular model.’

18 Lautsi v Italy, Appl No 30814/06 (3 November 2009).

19 Ibid, para 53.

20 Administrative Court of Veneto, No 1110 March 17, 2005, §16.

21 Lautsi, para 51.

22 Ibid, para 52.

23 Ibid, para 53.

24 Ibid, para 54, citing Dahlab v Switzerland, Appl no 42393/98 (15 February 2001).

25 Ibid, para 55.

26 Ibid, para 56.

27 Dahlab v Switzerland, Appl No 42393/98 (15 February 2001).

28 Lautsi, para 56.

29 Ibid, para 57 (emphasis added).

30 Folgerø and Others v Norway, Appl No 15472/02 (29 June 2007). For another significant development see Organisation of Security and Cooperation in Europe, Toledo Guiding Principles on Teaching about Religion and Beliefs in Public Schools (Warsaw, 2007).

31 Leirvåg v Norway, UN Human Rights Committee, CCPR/C/_/D/_1155/2003, Communication No 1155/2003 (23 November 2004), available at <>, accessed 24 May 2010. The Human Rights Committee ruled that there was a violation of the right of parents to secure the religious and moral education of their children in conformity with their convictions under Art 18.4 of the International Covenant on Civil and Political Rights.

32 Folgerø, para 102.

33 Ibid, para 89.

34 Ibid, para 95.

35 Folgerø, Joint Dissenting Opinion, p 51.

36 Ibid, p 52.

37 Cf CJ, JJ and EJ v Poland, No 23380/94, Commission decision of 16 January 1996, DR 84, p 46, holding no violation of Articles 8 or 9 despite the applicant's claim that their daughter had been stigmatised by reason of claiming exemption from religious education classes.

38 Zengin v Turkey, Appl No 1448/04 (9 October 2007).

39 Ibid, para 59.

40 Ibid, para 67.

41 Alexandridis v Greece, Appl No 19516/06 (21 February 2008).

42 Ibid, para 36.

43 Ibid, para 38.

44 Art 4 ECHR:

‘2 No one shall be required to perform forced or compulsory labour.

‘3 For the purpose of this article the term “forced or compulsory labour” shall not include: …

‘b any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service; …

‘d any work or service which forms part of normal civic obligations.’

45 Grandrath v Federal Republic of Germany, European Commission of Human Rights, 23 April 1965, 10 Yearbook of the European Convention on Human Rights, 626.

46 Born, H and Leigh, I, Handbook on Human Rights and Fundamental Freedoms of Armed Forces Personnel, (Warsaw, 2008), ch 10. <>.

47 Autio v Finland, European Commission of Human Rights (6 December 1991) 72 Decisions and Reports, 245; Julin v Finland, European Commission of Human Rights (6 December 1991) (unpublished); Raninen v Finland, European Commission of Human Rights (7 March 1996) 8 Reports of Judgments and Decisions 2821–2822, para 55.

48 The failure to exempt members of Jehovah's Witnesses who as elders or deacons were performing a similar function to exempted ministers of religion from recognised religious societies in relation to liability for compulsory civilian service (as an alternative to compulsory military service, which they were excused as conscientious objectors) violated Article 14 taken together with Article 9: Gütl v Austria, Appl No 49686/99 (12 March 2009); Lang v Austria, Appl No 28648/03 (19 March 2009); Löffelmann v Austria, Appl No 42967/98 (12 March 2009).

49 Judge Power noted that ‘the Parliamentary Assembly of the Council of Europe was disappointed to note in 2007 that current law still does not offer conscientious objectors any guarantee of ‘genuine alternative service of a clearly civilian nature, which should be neither deterrent nor punitive in character’ as provided for by Council of Europe standards. The Assembly was ‘deeply concerned to note that for lack of a genuine form of civilian service, dozens of conscientious objectors, most of whom are Jehovah's Witnesses, continue to be imprisoned, since they prefer prison to an alternative service not of a truly civilian nature’. PACE Monitoring Committee Resolution 1532 (2007): Dissenting Opinion of Judge Power, n 6.

50 Bayatyan v Armenia [2009] ECtHR, Appl No 23459/03 (27 October 2009).

51 Ibid, Dissenting Opinion of Judge Power, para 7. See also the Concurring Opinion of Judge Fura, who pointed out that it was ‘somewhat surprising that the Court's case-law under Article 9 is not more developed’ and who raised the possibility that the Grand Chamber might ‘re-examine the issue/revisit the case-law/and maybe to take a step further and to state that to sentence someone who refuses to do military service on grounds of conscience would be in violation of Article 9. Present day conditions might have changed and lead to such a conclusion, at least when the sentence includes prison.’ (paras 2 and 7).

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Ecclesiastical Law Journal
  • ISSN: 0956-618X
  • EISSN: 1751-8539
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